Disclaimer requirement for pregnancy centers is unconstitutional

O'Brien v. Mayor and City Council of Baltimore, 2011 WL 572324 (D. Md.)

The Greater Baltimore Center for Pregnancy Concerns, Inc. provides pregnancy-related counseling, but for religious reasons it refuses to provide or refer for abortions or birth control (other than rhythm). It gets rent-free space from Archbishop O’Brien and St. Brigid’s Roman Catholic Congregation, Inc.

Baltimore enacted an ordinance requiring any organization that provides pregnancy related services but does not provide or refer for abortions or nondirective and comprehensive methods of birth control must post a conspicuous sign in its waiting room disclosing this. The court held that this violated the First Amendment.

Defendants argued that they should be allowed to conduct discovery on the harm the ordinance seeks to address, the commercial nature of plaintiffs’ activities, and evidence of deceptive advertising. The court disagreed, because all this would be after-acquired justification, and the First Amendment requires a proper basis for the ordinance at the time of enactment. (It cited a case holding that the government’s justification can’t be invented post-hoc in response to litigation; I think this is a mistake, since the justification for the ordinance is exactly what Baltimore always said it was; the question is whether it can look for more evidence for that consistent justification.)

The Archbishop and St. Brigid’s lacked standing, since all they did was let the Center use their facilities free of charge and weren’t subject to liability for their tenant’s failure to post the required sign. Nor would the signs posted by a tenant be attributed to them. They were noetheless allowed to participate as amici.

The disclaimer sign was compelled speech, and regulated the Center’s speech by mandating the timing and content of the introduction of the subjects of abortion and birth control.

Was the Center’s speech commercial? Defendants argued that it was because the Center offers valuable goods and services (pregnancy tests, sonograms, and options counseling) to pregnant women. However, the overall purpose of the Center’s ads and other communications was not to propose a commercial transaction, nor was it related to the Center’s economic interests. Rather, the Center engaged in speech related to abortion and birth control based on religious and political beliefs rather than commercial interests or profit motives. The Center’s services had value in the commercial marketplace, but that didn’t mean that offering them freely was engaging in a commercial transaction, any more than offering congregants sacramental wine or communion wafers would be. Nonprofit status isn’t the key; the key is the nature of the transaction proposed by the speaker. Anyway, even if the speech had some commercial elements, it was inextricably intertwined with fully protected speech, and the disclaimer couldn’t target only the commercial elements.

The disclaimer would alter the dialogue “between a limited-service pregnancy center and an expectant mother,” which “begins when the client or prospective client enters the waiting room of the center.” This triggered strict scrutiny.

The ordinance was also viewpoint-based, regulating only those who speak about pregnancy-related services from a particular disfavored viewpoint: those providers who will never provide or refer for abortion or birth control services, thus limiting the ordinance’s application primarily, if not exclusively, to those with qualms regarding abortion and birth control. Under the First Amendment, a government cannot "impose special prohibitions on those speakers who express views on [governmentally] disfavored subjects” (quoting R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992)). (Query: how does this analysis apply to requirements that abortion clinics disclose various “facts” to women seeking abortions?)

Defendants argued that the ordinance’s purpose was to mitigate deceptive advertising, not to express disagreement with a viewpoint. The legislative record showed that certain pregnancy centers engaged in deceptive advertising, and then proceeded to employ delay tactics to dissuade women from accessing abortions and birth control. A statute isn’t viewpoint-based simply because its enactment was motivated by the conduct of partisans on one side. Hill v. Colorado, 530 U.S. 703, 724 (2000). However, unlike in Hill, the ordinance here doesn’t apply to every health care facility but only to limited-service pregnancy centers.

The ordinance then failed strict scrutiny. The court found that the record contained only sporadic instances of deceptive advertising. Even assuming this was a compelling government interest, the ordinance was not narrowly tailored. (As a side note, the Center argued that the disclaimer forced it to state untruthfully that it doesn’t provide birth control services, when they promote abstinence and natural family planning. Defendants argued that the ordinance allowed flexibility: the Center could state the methods they do promote. But this, the court concluded, would increase the effect on free speech “by highlighting (in a negative manner) those birth-control methods the center supports.”)

A disclaimer was not the least restrictive means of combating false advertising. It had no carve-out for centers that weren’t engaging in deceptive practices. Instead, the city could use or modify existing regulations governing false advertising. Although the present regulations only cover entities that sell goods or services, that could be changed with a content-neutral advertising ordinance applicable to noncommercial entities.

Note that this alternative may assume that it is constitutional to punish mere lying, something that’s not entirely clear.